Magee v. Paul

• Decision Date: 28 April 1920
• Docket Number: (No. 2564.)
• Citation: 221 S.W. 254
• Parties: MAGEE et al. v. PAUL et al.
• Court: Texas Supreme Court

221 S.W. 254

MAGEE et al. v. PAUL et al.

(No. 2564.)

Supreme Court of Texas.

April 28, 1920.

Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.

Trespass to try title by J. C. Paul and others against J. B. Magee and others. A judgment for plaintiffs was reversed and remanded by the Court of Civil Appeals (159 S. W. 325), but that court certified questions to the Supreme Court on which the judges did not agree. Questions answered.

W. F. Schenck, of Lubbock, N. Frank Faulk, of Athens, and Wm. J. Berne, of Ft. Worth, for appellants.

W. H. Bledsoe, of Lubbock, for appellees.

GREENWOOD, J.

This was an action of trespass to try the title to 640 acres of land in Lubbock county, in which appellees were plaintiffs and appellants were defendants.

The case was tried in the district court without a jury, and judgment was rendered for appellees. The Court of Civil Appeals reversed the judgment and remanded the cause for a new trial (159 S. W. 325); but the judges were not agreed in their conclusions, and have presented numerous questions in a certificate of 17 pages.

In order that our answers to the properly certified questions may be understood, we state the following facts from the certificate:

The land was patented by the state on May 25, 1882, to John H. Gibson, who died on October 28, 1877, and the heirs of John H. Gibson conveyed the land on March 30, 1910, to appellant P. C. Gibson, who conveyed an undivided half interest in the land on May 5, 1911, to appellants W. F. Schenck and N. Frank Faulk, in consideration of legal services rendered and to be rendered.

The land was located under a duplicate certificate numbered 35/52, dated July 15, 1878, reciting that satisfactory evidence had been produced of the loss of land script certificate No. 16, issued to John H. Gibson on July 27, 1875, for 640 acres of land, and declaring that the duplicate would entitle the said John H. Gibson to all the benefits granted by the original certificate.

On May 23, 1879, a survey was made of the 640 acres of land in controversy by virtue of the duplicate certificate No. 35/52, "for J. S. Daugherty, C. A. Connell, and J. A. Ammermann."

By deed dated and acknowledged June 21, 1879, Stephen Albert of Floyd county, Ind., transferred and assigned to J. S. Daugherty duplicate certificate No. 35/52, and the deed recited that the certificate was a "duplicate of certificate No. 16, issued to the said John H. Gibson by commissioner of the general land office, on the 27th day of July, 1875, and transferred by said John H. Gibson to me, the said Stephen Albert." This deed was duly recorded on June 28, 1886.

Appellees have a regular chain of title, duly recorded, to the 640 acres of land, under J. S. Daugherty, the deed to appellees being dated August 14, 1905.

There was evidence, some of which tended to establish, and some of which tended to negative, acquiescence by the heirs of John H. Gibson in the claim to the 640 acres under Stephen Albert.

No possession of the land was shown, save that appellant Schenck had collected $32 per year as rent for a period not stated.

The appellees were entitled to recover only in the event that they established an ancient transfer, or chain of ancient transfers, of original certificate No. 16, from John H. Gibson to Stephen Albert.

Appellees offered in evidence certified copies of written instruments, indorsed as filed in the general land office on the day on which the duplicate certificate was issued, as follows:

(1) An affidavit of Stephen Albert, made July 8, 1878, to the effect that when he delivered, at New Albany, Ind., to the Adams Express Company, Texas land script No. 16, the transfer of same to him was attached thereto, and that the script and transfer had been lost, and that affiant was the sole, exclusive, and absolute owner of the certificate, and had never transferred the same or any interest therein to any person.

(2) An affidavit of W. E. Parry, made July 3, 1878, to the effect that when he sold and delivered to Edward White and Stephen Albert, of New Albany, Ind., Texas land script No. 16, and eight other certificates, whose numbers were stated, the transfers were properly made and acknowledged, and that affiant had no memoranda to refresh his memory as to the exact numbers of the certificates, yet, to the best of his recollection, knowledge, and belief, the numbers given were correct.

(3) An affidavit of J. L. A. Thomas, made July 12, 1878, to the effect that on February 22, 1878, he was a messenger of the Texas Express Company, and that on that day he was attacked by armed and masked men, and a number of valuables were taken from him, and among them was one package from New Albany, Ind., valued at $1,400, addressed to S. W. Lomax at Ft. Worth, Tex.

Appellees also offered in evidence a copy, certified by the commissioner of the general land office, of an affidavit of B. B. Paddock, made May 24, 1878, to the publication in the Democrat, at Ft. Worth, Tex., for 60 days, of a notice signed by "F. W. Conner, Agent Texas Express Company," of the loss of nine land certificates, including certificate No. 16, issued to John H. Gibson, and that, if not recovered or found within sixty days, application for duplicate would be made.

The first question certified is whether the trial court erred in admitting the foregoing affidavits in evidence over the following objections: First, that the affidavits were not archives of the land office; second, that the affidavits were secondary and hearsay evidence; and, third, that the matters shown by the affidavits were conclusions of the affiants.

The law in force when the duplicate certificate was issued was the same as in articles 3883, 3884, and 3885 of the Revised Statutes of 1879. It is evident that the affidavits were filed in an attempt to meet the provisions of the law. The land commissioner, in the exercise of his authority to determine the sufficiency of the affidavits, having approved same, and having issued thereon the duplicate certificate under which the land in controversy was patented, it cannot be said that the law did not authorize or permit the filing of the affidavits, and hence there is no doubt they became archives, and the certified copies were as admissible in evidence as would be the originals. Southwestern Surety Ins. Co. v. Anderson, 106 Tex. 46, 155 S. W. 1176; Robertson v. Brothers (Civ. App.) 139 S. W. 658.

The law under which the duplicate certificate issued required that, "when the assignee of the original grantee applies for such duplicate, the evidence of this title shall be filed in the general land office, if not already on file." Under this requirement, Albert filed, and the commissioner approved, as the evidence of his title, proof that transfers into himself of the certificate had been executed, and that the certificate and transfers had been lost. With this affirmative showing that the duplicate issued, not on filed transfers, but on proof of inability to file transfers, and with all parties claiming under the act of the commissioner in accepting this proof, we do not think that any further showing was necessary that a search would be unavailing in the land office for better evidence of the missing links in appellees' chain of title, and hence the objection was not tenable that the affidavits were secondary evidence.

Since, it is not consistent with human experience for one really owning property of value to assert no claim thereto, but to acquiesce for a long period of time in an unfounded, hostile claim, the rule is sound which permits the inference that an apparent owner has parted with his title from evidence first, of a long-asserted and open claim, adverse to that of the apparent owner; second, of nonclaim by the apparent owner; and third, of acquiescence by the apparent owner in the adverse claim.

The rule is essential to the ascertainment of the very truth of ancient transactions. Without it, numberless valid land titles could not be upheld. Its application becomes more and more important with the passing years, as it becomes more and more difficult to get living witnesses to that which long ago transpired.

As evidence of a claim of ownership, recitals in ancient instruments are admissible over the objection that they are hearsay or self-serving. Dunn v. Epperson (Civ. App.) 175 S. W. 841; Sandmeyer v. Dolijsi (Civ. App.) 203 S. W. 118. The principal reasons which forbid the exclusion of such recitals have been stated with such clearness and force in a series of opinions by the lamented Judge Reese, as to obviate the necessity for further discussion. Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033; Frugia v. Trueheart, 48 Tex. Civ. App. 513, 106 S. W. 739; Hirsch v....